Terms & Conditions
CONTENT LICENSE AGREEMENT
1. Background of Agreement
(a) This is a fairly lengthy document, and it contains many important provisions that affect your rights and obligations. By selecting the correct box at the end of any order form or other means of registration or otherwise signifying your acceptance, you accept this Agreement either for yourself or on behalf of your employer or the entity that is identified as the purchaser of products and/or services and/or the member account holder, and agree to be bound by its provisions. If you are accepting on behalf of your employer or the entity that is the member account holder, you represent and warrant that you have full legal authority to bind your employer or such other entity. If you do not have such authority or you do not accept or agree with these terms, do not accept the Agreement and do not download the Content.
(b) In this Agreement:
(i) “you” or the “Client” means you or, if you are accepting on behalf of your employer or member account entity, then “you” means that employer or entity and affiliates;
(ii) “Miss M” or “I” means Miss M, 24/7 slave to and property of Mistress Tara, operator of the Site; and
(iii) “Content” means any photographic image, illustration, animation, Flash file, film or video footage, visual representation generated optically, electronically, digitally or by any other means or in any media or other material that you are downloading from the Site, together with any accompanying material.
2. Standard License Terms
I hereby grant to you a perpetual, non-exclusive, non-transferable worldwide license to use the Content for the Permitted Uses (as defined below). Unless the activity or use is a Permitted Use, you cannot do it. All other rights in and to the Content, including, without limitation, all copyright and other intellectual property rights relating to the Content, are retained by Miss M or the supplier of the Content, as the case may be.
3. Permitted Standard License Uses
(a) You may only use the Content for personal non-commercial purposes. For clarity, you may not use the Content in products for resale, license or other distribution.
(b) Seat Restrictions. Only you are permitted to use the Content, although you may transfer files containing Content to your printers, USB or other storage for the purpose of reproduction for personal uses. You may install and use the Content in only one location at a time. You may physically transfer the Content and its archives from one location to another, in which case you may use the Content at the new location instead. If you require the Content to be in more than one location it may not be accessible by more than one person (yourself). You may make one (1) copy of the Content solely for back-up purposes, and you must reproduce all proprietary notices on this single back-up copy.
(c) Permitted Uses. Subject to the restrictions described under Prohibited Uses below, the “Permitted Uses” of Content are exclusively personal, non-commercial, and not for redistribution in any way, shape, or form, whatsoever.
If there is any doubt that a proposed use is a Permitted Use, you should contact Miss M for guidance.
4. Standard License Prohibitions
(a) Prohibited Uses. You may not do anything with the Content that is not expressly permitted in the preceding section. For greater certainty, the following are “Prohibited Uses” and you may not:
1. use the Content in any commercial way whatsoever;
2. use the Content to misrepresent that you are the person in the image whether under the real name or an alias of the person in the image;
3. use the Content in design template applications intended for resale, whether on-line or not, including, without limitation, website templates, Flash templates, business card templates, electronic greeting card templates, and brochure design templates;
4. use or display the Content on websites or other venues designed to induce or involving the sale, license or other distribution of “on demand” products, including postcards, mugs, t-shirts, posters and other items (this includes custom designed websites, as well as sites such as www.cafepress.com);
5. use the Content in any posters (printed on paper, canvas or any other media) or other items for resale, license or other distribution whether for profit or not;
6. use any of the Content as part of a trade-mark, design-mark, trade-name, business name, service mark, or logo;
7. incorporate the Content in any product that results in a re-distribution or re-use of the Content (such as electronic greeting card web sites, web templates and the like) or is otherwise made available in a manner such that a person can extract or access or reproduce the Content as an electronic file;
8. use or display any Content that features a person in a manner that would lead a reasonable person to think that such person uses or personally endorses any business, product, service, cause, association or other endeavour;
9. to the extent that source code is contained within the Content, reverse engineer, decompile, or disassemble any part of such source code;
10. remove any notice of copyright, trade-mark or other proprietary right from any place where it is on or embedded in the Content;
11. sub-license, re-sell, rent, lend, assign, gift or otherwise transfer or distribute the Content or the rights granted under this Agreement;
12. install and use the Content in more than one location at a time or post a copy of the Content on a network server or web server for use by other users;
13. use or display the Content in an electronic format that enables it to be downloaded or distributed via mobile devices or shared in any peer-to-peer or similar file sharing arrangement;
14. use the Content for editorial purposes;
15. use the Content in advertising and promotional projects, including printed materials, product packaging, presentations, film and video presentations, commercials, catalogues, brochures, promotional greeting cards and promotional postcards (ie. not for resale or license);
16. use the Content in entertainment applications, such as books and book covers, magazines, newspapers, editorials, newsletters, and video, broadcast and theatrical presentations;
17. use the Content in on–line or electronic publications, including web pages or for video Content;
18. use the Content in prints, posters (i.e. a hardcopy) and other reproductions for promotional purposes; and
19. use the Content in any other uses not permitted by Miss M in writing and either from time to time amended in these terms and conditions or posted on the Site.
5. Term of Agreement
(a) This Agreement is effective until it is terminated. You can terminate this Agreement by destroying the Content, along with any copies or archives of it or accompanying materials (if applicable), and ceasing to use the Content for any purpose. The Agreement also terminates without notice from Miss M if at any time you fail to comply with any of the terms herein. Upon termination, you must immediately
(i) cease using the Content and for any purpose;
(ii) destroy or delete all copies and archives of the Content or accompanying materials; and
(iii) if requested, confirm to Miss M in writing that you have complied with these requirements.
(b) Miss M reserves the right to elect at a later date to revoke or amend the license granted by this Agreement and replace the Content with an alternative for any reason. Upon notice, sent to the address or contact information provided by you for your (member) account, or such other address as you may advise me in writing to use, from time to time, of such replacement, the license for the replaced Content immediately terminates for any products that do not already exist, and this license automatically applies to the replacement Content. You agree not to use the replaced Content for future products and to take all reasonable steps to discontinue use of the replaced Content in products that already exist.
(c) Upon notice from Miss M, or upon your knowledge that any Content is subject to a threatened, potential or actual claim of infringement of another’s right for which Miss M may be liable, you must immediately and at your own expense
(i) stop using the Content; and
(ii) delete or remove the Content from your premises, computer systems and storage (electronic or physical). Miss M shall provide you with replacement Content (which shall be determined by Miss M in my reasonable judgment) free of charge, but subject to the other terms and conditions of this Agreement.
6. Miss M Representations and Warranties
(a) Miss M warrants that:
(i) your use of the Content in accordance with this Agreement and in the form delivered by Miss M will not infringe on any copyright, moral right, trademark or other intellectual property right and will not violate any right of privacy or right of publicity; and
(ii) all necessary model and/or property releases for use of the Content in the manner authorized under this Agreement have been obtained.
(b) While I have made reasonable efforts (where applicable) to correctly categorise and keyword the Content, Miss M does not warrant the accuracy of such information.
(c) OTHER THAN AS EXPRESSLY PROVIDED IN SECTION 6(a), THE CONTENT IS PROVIDED “AS IS” WITHOUT REPRESENTATION, WARRANTY OR CONDITION OF ANY KIND, EITHER EXPRESS OR IMPLIED, INCLUDING, BUT NOT LIMITED TO THE IMPLIED REPRESENTATIONS, WARRANTIES OR CONDITIONS OF MERCHANTABILITY, OR FITNESS FOR A PARTICULAR PURPOSE. Miss M DOES NOT REPRESENT OR WARRANT THAT THE CONTENT WILL MEET YOUR REQUIREMENTS OR THAT ITS USE WILL BE UNINTERRUPTED OR ERROR FREE. THE ENTIRE RISK AS TO THE QUALITY AND PERFORMANCE OF THE CONTENT IS WITH YOU. SHOULD THE CONTENT PROVE DEFECTIVE, YOU (AND NOT Miss M) ASSUME THE ENTIRE RISK AND COST OF ALL NECESSARY CORRECTIONS.
IN PARTICULAR AND WITHOUT LIMITING THE GENERALITY OF THE FOREGOING, IF YOU ARE DOWNLOADING CONTENT THAT IS IN A FLASH FORMAT OR FILE (WHETHER .SWF OR OTHERWISE), EXCEPT AS EXPRESSLY PROVIDED IN SECTION 6(a), Miss M MAKES NO REPRESENTATION OR WARRANTY RESPECTING SUCH CONTENT WHATSOEVER, WHETHER AS TO OWNERSHIP, TECHNICAL OR LEGAL COMPLIANCE, OR OTHERWISE.
(d) Certain jurisdictions do not allow the exclusion of implied warranties, so the above exclusion may not apply to you. You have specific rights under this warranty, but you may have others, which vary from jurisdiction to jurisdiction.
7. Miss M Indemnification and Limitation of Liability
(a) Provided that the Content is only used in accordance with this Agreement and you are not otherwise in breach of this Agreement and as your sole and exclusive remedy for breach of the representations and warranties set forth in Section 6 (a) above, Miss M shall, subject to the terms of Sections 7(b),(c),(d) and (e) defend, indemnify and hold harmless you, your parent, subsidiaries and affiliates and respective directors, officers and employees from all damages, liabilities and expenses (including reasonable outside legal fees), arising out of or connected with any actual or threatened lawsuit, claim or legal proceeding alleging that the possession, or use of the Content by you is in breach of the representations and warranties set forth in Section 6(a) above. The foregoing states Miss M’s entire indemnification obligation under this Agreement.
(b) The indemnification set out in Section 7(a) above is conditioned on your prompt notification in writing to Miss M of such claim and my right to assume the handling, settlement or defence of any claim or litigation. You agree to cooperate with Miss M in the defence of any such claim or litigation and shall have the right to participate in such litigation at your sole expense. Miss M shall not be liable for legal fees and other costs incurred prior to the notice of the claim.
(c) IN NO EVENT SHALL Miss M OR ANY OF MY AFFILIATES OR CONTENT PROVIDERS OR THEIR RESPECTIVE DIRECTORS, OFFICERS, EMPLOYEES, SHAREHOLDERS, PARTNERS OR AGENTS BE LIABLE FOR ANY INCIDENTAL, INDIRECT, PUNITIVE, EXEMPLARY, OR CONSEQUENTIAL DAMAGES WHATSOEVER (INCLUDING DAMAGES FOR LOSS OF PROFITS, INTERRUPTION, LOSS OF BUSINESS INFORMATION, OR ANY OTHER PECUNIARY LOSS) IN CONNECTION WITH ANY CLAIM, LOSS, DAMAGE, ACTION, SUIT OR OTHER PROCEEDING ARISING UNDER OR OUT OF THIS AGREEMENT, INCLUDING WITHOUT LIMITATION YOUR USE OF, RELIANCE UPON, ACCESS TO, OR EXPLOITATION OF THE CONTENT, OR ANY PART THEREOF, OR ANY RIGHTS GRANTED TO YOU HEREUNDER, EVEN IF I HAVE BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES, WHETHER THE ACTION IS BASED ON CONTRACT, TORT (INCLUDING NEGLIGENCE), INFRINGEMENT OF INTELLECTUAL PROPERTY RIGHTS OR OTHERWISE. NO ACTION, REGARDLESS OF FORM OR NATURE, ARISING OUT OF THIS AGREEMENT MAY BE BROUGHT BY OR ON BEHALF OF YOU MORE THAN TWO (2) YEARS AFTER THE CAUSE OF ACTION FIRST AROSE.
(d) NOTWITHSTANDING ANY OTHER TERM HEREIN, Miss M SHALL NOT BE LIABLE FOR ANY DAMAGES, COSTS OR LOSSES ARISING AS A RESULT OF MODIFICATIONS MADE TO THE CONTENT BY YOU OR THE CONTEXT IN WHICH THE CONTENT IS USED BY YOU.
(e) NOTWITHSTANDING ANYTHING ELSE IN THIS AGREEMENT, THE TOTAL MAXIMUM AGGREGATE LIABILITY OF Miss M UNDER THIS AGREEMENT AND ANY OTHER AGREEMENT UNDER WHICH YOU HAVE LICENSED THE SAME CONTENT, REGARDLESS OF THE FILE SIZE, OR THE USE OR EXPLOITATION OF ANY OR ALL OF THE CONTENT IN ANY MANNER WHATSOEVER AND THE OBLIGATION OF Miss M UNDER SECTION 7(a) SHALL BE LIMITED TO AN AGGREGATE OF TEN THOUSAND ($1,000) AUSTRALIAN DOLLARS. FOR GREATER CLARITY, Miss M’S LIABILITY TO YOU IN RESPECT OF THE CONTENT SHALL NOT EXCEED ONE THOUSAND ($1,000) AUSTRALIAN DOLLARS REGARDLESS OF THE NUMBER OF TIMES THAT YOU LICENSE THE SAME CONTENT FROM Miss M.
(f) SOME JURISDICTIONS DO NOT ALLOW FOR THE LIMITATION OR EXCLUSION OF LIABILITY FOR INCIDENTAL OR CONSEQUENTIAL DAMAGES, SO THE ABOVE LIMITATION OR EXCLUSION MAY NOT APPLY TO YOU.
8. Your Indemnification
You agree to indemnify, defend and hold Miss M, my affiliates, Content providers and their respective directors, officers, employees, shareholders, partners and agents (collectively, the “Miss M Parties”) harmless from and against any and all claims, liability, losses, damages, costs and expenses (including reasonable legal fees on a solicitor and client basis) incurred by any Miss M Party as a result of or in connection with any breach or alleged breach by you or anyone acting on your behalf of any of the terms of this Agreement.
9. General Provisions
(b) Miss M’s failure to insist upon or enforce strict performance of any provision of this Agreement shall not be construed as a waiver of any provision or right.
(c) This Agreement is personal to you and is not assignable by you without Miss M’s prior written consent. Miss M may assign this Agreement without your consent to any other party so long as such party agrees to be bound by its terms.
(d) If all or part of any provision of this Agreement is wholly or partially unenforceable, the parties or, in the event the parties are unable to agree, a court of competent jurisdiction, shall put in place of such whole or part provision an enforceable provision or provisions, that as nearly as possible reflects the terms of the unenforceable whole or part provision.
(e) You agree to pay and be responsible for any and all sales taxes, use taxes, value added taxes and duties imposed by any jurisdiction as a result of the license granted to you, or of your use of the Content, pursuant to this Agreement.
(f) This Agreement will be governed under the laws of the state of New South Wales and the federal laws of Australia applicable therein (without reference to conflicts of laws principles). This Agreement will not be governed by the United Nations Convention on Contracts for the International Sale of Goods, the application of which is expressly excluded. You consent to service of any required notice or process upon you by registered mail or overnight courier with proof of delivery notice, addressed to the address or contact information provided by you at the time the Content was downloaded, or such other address as you may advise us in writing to use, from time to time, including a valid email address; as such you consent to service by electronic means via email.
(g) Any and all disputes arising out of, under or in connection with this Agreement, including without limitation, its validity, interpretation, performance and breach, shall be finally settled under the Rules of Arbitration of the International Chamber of Commerce by a single Arbitrator appointed in accordance with such rules. The arbitration shall take place in Sydney, Australia, and shall be conducted in the English language.
(h) The parties have requested that this Agreement and all related documents be drawn up in English.
YOU ACKNOWLEDGE THAT YOU HAVE READ THIS AGREEMENT, UNDERSTAND IT, AND HAD AN OPPORTUNITY TO SEEK INDEPENDENT LEGAL ADVICE PRIOR TO AGREEING TO IT. IN CONSIDERATION OF Miss M AGREEING TO PROVIDE THE CONTENT, YOU AGREE TO BE BOUND BY THE TERMS AND CONDITIONS OF THIS AGREEMENT. YOU FURTHER AGREE THAT IT IS THE COMPLETE AND EXCLUSIVE STATEMENT OF THE AGREEMENT BETWEEN YOU AND Miss M, WHICH SUPERSEDES ANY PROPOSAL OR PRIOR AGREEMENT, ORAL OR WRITTEN, AND ANY OTHER COMMUNICATION BETWEEN YOU AND Miss M RELATING TO THE SUBJECT OF THIS AGREEMENT.